Uniform civil code

Uniform civil code is the ongoing point of debate within Indian mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles expects the state to apply these while formulating policies for the country.

One wonders how long it will take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44. ... There is no justification in delaying indefinitely the introduction of a uniform personal law.

The failure to adopt a Uniform civil code [has the effect that] Muslimwomen suffer because they do not have an equal right of inheritance, because they cannot easily obtain a divorce, because they can be divorced by their husband at their whim or caprice.

The classic example given is the Shah Bano case of 1985: repudiated by her husband, the Muslim woman Shah Bano went to court to force him to pay alimony, which Islamic law forbids; the Supreme Court upheld her claim on the basis of equality before the law (Hindu women would have the right to alimony in her case), but under Muslim pressure, Rajiv Gandhi's Congress Government voted a law overruling the verdict and reaffirming the Islamic rules on divorce, at least for Muslims.

This totally non-secular arrangement was meant to be only temporary, for the Constitution stipulates in its directive principles (Art. 44) that the State shall endeavour to enact a Common Civil Code. In 1995, the Supreme Court reminded the Government of this directive principle, and directed it to report on the progress made in the matter... The BJS-BJP has always demanded the implementation of Art.44, but the majority has blocked this secular policy time and again...The Common Civil Code is not a demand of Hindu society (certainly not a priority), but is intrinsically a demand of secularism... The trouble of raising this impec­cably secular and explicitly constitutio­nal demand should be left to the secularists; as long as they don't put it on the agenda, the present religion-based personal law systems are a standing testimony to the hypocrisy of the secularist establishment. Equality before the law regardless of religion is an essential requirement of a secular state, and it is a measure of the perversion of India's political parlance that BJP opponents actually defend the separate religion-based civil codes in the name of secularism.

Elst, Koenraad. (1997) BJP vis-à-vis Hindu Resurgence

An Anti-Common Civil Code Convention was held by Muslims at the Talkatora Indoor Stadium in New Delhi on July 4, 1995. The Convention demanded that the Muslims should be exempted from the purview of Article 44 of the Constitution which envisages such a code. Asad Madani, the chief of the Jamiat, called the demand for a common civil code a conspiracy to finish off the Muslims in India. He advised all Muslims to have four wives to increase the Muslim population and to enhance their influence with the Government. Zafaryab Jilani described the move for a common civil code as anti-Islamic and aimed at finishing Islam in India. Mufti Abdul Razzaq of Bhopal wanted Muslims to wage jihad against the Government and to kill those who opposed Muslim Personal Law. Many more separatist statements were made. If the Muslims were concerned about equality with devotees of other faiths, they would not oppose a common civil code meant for and applicable to all Indians. Instead of opposing it they should grab this opportunity to get into the proposed code all the good things in the Shariat concerning the "high status of women in Islam" about which Muslims are so vociferous.

Many a time aggrieved parties (like divorced Muslim women) have approached the courts for redressal and many a time the Supreme Court has asked the government to explain the steps it has taken for securing uniformity in the personal laws, particularly those of the Muslims, leading to the enactment of a common civil code for all Indians.

As the legacy of this scenario, Indian girls are still being sold to West Asian nationals as wives, concubines and slave girls. For example, all the leading Indian newspapers like The Indian Express, The Hindustan Times and The Times of India of 4 August 1991, flashed the news of a sixty year old “toothless” Arab national Yahiya H.M. Al Sagish “marrying” a 10-11 year old Ameena of Hyderabad after paying her father Rs. 6000, and attempting to take her out of the country. Al Sagish has been taken into police custody and the case is in the law-court now. Mr. I.U. Khan has “pointed out that no offence could be made out against his client as he had acted in accordance with the Shariat laws. He said that since this case related to the Muslim personal law which permitted marriage with girls who had attained Puberty (described as over 9 years of age), Al Sagish could not be tried under the Indian Penal Code (IPC). Besides Ameena’s parents had not complained.” (Times of India, 14 August 1991). But this is not an isolated case. I was in Hyderabad for about four years, 1979-1983. There I learnt that such “marriages” are common. There are regular agents and touts who arrange them. Poor parents of girls are handsomely paid by foreign Muslims for such arrangements. Every time that I happened to go to the Hyderabad Airlines office or the Airport (which was about at least once a month), I found bunches of old bridegrooms in Arab attire accompanied by young girls, often little girl brides. “A rough estimate indicated that as many as 8000 such marriages were solemnised during the past one decade in Hyderabad alone.” (Indian Express Magazine, 18 August 1991). In short, the sex slave-trade is still flourishing not only in Hyderabad but in many other cities of India after the medieval tradition.

An early warning against perpetuating the minority complex was sounded in a memorandum submitted to the Constituent Assembly’s committee on minorities by Rajkumari Amrit Kaur, a leading member of the Christian community. She said: “The primary duty of the committee appointed to look into the problem of minorities is to suggest such ways and means as will help to eradicate the evil of separatism, rather than expedients and palliatives which might, in the long run, only contribute to its perpetuation.” She added, “Privileges and safeguards really weaken those that demand them…” A distinguished member of another minority community, Muhammad Currimbhoy Chagla, wrote in his autobiography in 1973: “I have often strongly disagreed with the government policy of constantly harping upon minorities, minority status and minority rights. It comes in the way of national unity, and emphasises the differences between the majority community and minority. Of course it may serve well as a vote-catching device to win Muslim votes, but I do not believe in sacrificing national interests in order to get temporary party benefits. Although the Directive Principles of the State enjoin a uniform civil code, the Government has refused to do anything about it on the plea that the minorities will resent any attempt at imposition.” The false equation of secularism and minorityism of the Congress is repeated in the policies of the National Front Government.

No wonder that in India Muslims want separate schools for their children and claim Urdu as their language. They want their Personal Law (which mainly means polygamy), and resist enactment of a uniform civil code for all. They are against family planning so that their population may grow unchecked. In short, in countries where Muslims are in a minority and the state is not Islamic, they insist on living an alienated, unintegrated and “superior” life by agitating for concessions specified by their Islamic Shariat. No amount of falsification of history can humour them into living with others on terms of equality. Therefore Congress-culture politicians and pseudo-secularists should at least inform the minority whose cause they espouse, but to whom they never dare read a lecture, that secularism and fundamentalism are mutually exclusive, and that in the Indian secular state the Muslims cannot practise their fundamentalism. Furthermore, they can also be told that history can no longer be distorted, that it cannot be made the handmaid of politics, and that therefore they need to feel sorry if not actually repentant about the past misdeeds of Muslims.

Genuine secular states have equality before the law of all citizens regardless of religion. By contrast, India has different civil codes depending on the citizen's religion. Thus, for Christians it is very hard to get a divorce, Hindus and Muslim women can get one through judicial proceedings, and Muslim men can simply repudiate their wives. The secular alternative, a common civil code, is championed by the Hindu nationalists. It is the so-called secularists who, justifying themselves with specious sophistry, join hands with the most obscurantist religious leaders to insist on maintaining the present unequal system. Likewise, legal inequality in matters of temple management, pilgrimage subsidies, special autonomy for states depending on their populations’ religious composition, and the right to found religious schools is defended by the so-called secularists (because it is invariably to the disadvantage of the Hindus) while the Hindu nationalists favour the secular alternative of equality regardless of religion.

Then there is the matter of the separate civil code for the minorities. Marriage and inheritance laws are, perhaps on top of some sacramental dimension, quite secular matters. Recognizing and institutionalizing inequality between the citizens of India in these secular matters on the basis of their religion is definitely a case of constitutional communalism. Or rather, let us not be too harsh on the Constitution itself, for it does call on the law-maker to eventually abolish the religion-based law systems. It is political communalism on the part of the parties that refuse to implement the constitutional provision for the eventual enactment of a common civil code.

Indeed, over the years I have had many a good laugh at the pompous moralism and blatant dishonesty of India's so-called secularists. Their specialty is to justify double standards, e.g. why mentioning murdered Kashmiri Pandits is “communal hate-mongering” while the endless litany about murdered Gujarati Muslims is “secular consciousness-raising”. Sometimes they merely stonewall inconvenient information, such as when they tried to deny and suppress the historical data about the forcible replacement of a Rama temple in Ayodhya by a mosque: given the strength of the evidence, all they could do was to drown out any serious debate with screams and swearwords. But often they do bring out their specific talents at sophistry, such as when they argue that a Common Civil Code, a defining element of all secular states, is a Hindu communalist notion, while the preservation of the divinely-revealed Shari’a for the Muslims is secular. That’s when they are at their best.

As a group, the secularists, especially the Leftists, have not summoned the courage to insist that in order to ensure the survival of the secular India state, Muslims should accept one common civil code, and that Article 370 of the Constitution, which concedes special rights to Jammu and Kashmir mainly because it is a Muslim-majority state, should be scrapped... Even so I find it extraordinary that those who call themselves modernizers and secularists-the two terms are interchangeable-should shirk the logic of their philosophy of life.

[Women in Islamic countries] are exposed to male domination as a rule rather than as an exception... If anyone protests... as I have done, you are sure to be branded as a witch... What I demand is freedom for women from male domination and a uniform code... It that can be construed as blasphemy, I cannot help it.